Serco Australia Pty Ltd v United Voice

[2015] FWCFB 841

[2015] FWCFB 841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Serco Australia Pty Ltd
v
United Voice
(C2014/8378)

SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER SPENCER

MELBOURNE, 10 FEBRUARY 2015

Appeal against decision [[2014] FWC 9090] of Commissioner Booth on 19 December 2014 in matter number C2014/3276.

Introduction

[1] Serco Australia Pty Ltd (Serco) has appealed a decision of Commissioner Booth of 19 December 2014 1 in which the Commissioner found she had jurisdiction to deal with a dispute involving Serco. The appeal is made only in respect of the Commissioner’s decision that she had jurisdiction to deal with the dispute and not in respect of her conclusion which determined the dispute.

[2] The dispute in respect of which the Commissioner found she had jurisdiction came before her pursuant to an application 2 made by United Voice (UV), under s.739 of the FW Act, in reliance on clause 43 of the Serco Southern Queensland Correctional Centre Agreement 2013-2016 (the Serco Agreement)3 which sets out its “Grievance and disputes resolution procedure”.

[3] There was also another dispute concerning meal breaks for chefs before the Commissioner and dealt with in her decision, but that dispute and the decision thereon are not presently relevant.

[4] At the hearing of the appeal, we granted permission to both Serco and UV to be represented by a lawyer pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act) having regard to the jurisdictional issues raised by the appeal.

Grievance and disputes resolution procedure

[5] The Serco Agreement was approved by the FWC on 20 September 2013 to operate from 27 September 2013. 4 Clause 43 of the Serco Agreement provides as follows:

“43. Grievance and disputes resolution procedure

(a) In the event that a grievance or dispute arises about the National Employment Standards or matters in this Agreement, every effort shall be made by the parties to resolve the grievance or dispute at the workplace level in accordance with the process set out in this clause.

In relation to disputes about other matters pertaining to the relationship between the company and employees, they will also be subject to the process set out in this clause, however such matters may only proceed to arbitration by consent of the parties.

(b) The aggrieved employer/employees shall discuss the issue with their immediate supervisor for the purpose of resolution.

(c) If the matter remains unresolved, it is to be discussed with the next-up manager or another senior manager appointed by the company for this purpose.

(d) If the matter remains unresolved, it is to be discussed with a member of the senior management team appointed by the Centre Director for this purpose. At the aggrieved employee/employee’s request, an official of the union and/or employee representative may be involved in representing the grievance to senior management.

(e) If discussions at workplace level do not resolve the dispute, a party to the dispute or their representative may refer the matter to the Commission.

The Commission may deal with the dispute in 2 stages:

(i) The Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation conciliation, expressing an opinion or making a recommendation; and

(ii) If the Commission is unable to resolve the dispute at the first stage, the Commission may then:

• arbitrate the dispute; and



• make a determination that is binding on the parties.

(f) While the parties are trying to resolve the dispute using the procedures in this term:

(i) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(ii) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

• The work is not safe; or



• Applicable occupational health and safety legislation would not permit the work to be performed; or



• the work is not appropriate for the employee to perform; or



• there are other reasonable grounds for the employee to refuse to comply with the direction.” 5

Commissioner’s decision

[6] The Commissioner decided, in effect, that she had jurisdiction to arbitrate the dispute before her on the basis that the dispute was about “matters in the [Serco] Agreement”. She said:

“[17] … This is because each [dispute] refers to the proper interpretation of the Agreement, and more particularly, the applicability of clauses in the Agreement to particular circumstances being:

(i) the applicability of the wage rates stated in Appendix 2 to certain classes of remuneration…

[18] Determination of each issue necessarily relates to the content of the Agreement and its application to particular circumstances and is therefore directly relevant to matters in the Agreement.

[19] The jurisdictional objection is dismissed.” 6

[7] In dealing with the dispute, the Commissioner said:

“[22] There is no dispute that the parties agreed to back pay being paid for the period from 1 April 2013 to the commencement of the Agreement. The table of wage rates in Appendix 2 of the Agreement specify, for each classification, rates applicable from 1 April 2013. Those rates are identical to those set out in clause 14 applying from commencement of the Agreement…

[26] In deciding how to interpret the nature of back pay to be paid to employees, that is, whether it includes as the union asserts - overtime worked, annual leave and personal leave taken; or whether back pay applies to the exclusion of overtime, annual and personal leave and is only payable on ordinary time wages and allowances, the principles to be followed are described above in the Golden Cockerel decision…

[29] On the authority of Golden Cockerel it is firstly necessary to determine whether the agreement to pay back pay as contained in the Agreement has a plain meaning or contains an ambiguity.

[30] In doing so regard may be had to evidence of the surrounding circumstances to assist in determining whether such ambiguity exists…

[36] As a result, the Table of Wage Rates in Appendix 2 is susceptible to more than one meaning.
[37] However while the differing views on interpretation allow consideration of the context, there is no common intention of the parties which can be relied on.

[38] Its interpretation and meaning will turn on the language of the Agreement itself. These matters are set out below.” 7

[8] Following such consideration, the Commissioner concluded in respect of the dispute as follows:

“[47] Accordingly the back pay as agreed in Appendix 2 of the Agreement includes payment for annual and personal leave taken during the period 1 April 2013 to the commencement of the Agreement.” 8

Grounds of appeal

[9] Serco submits the Commissioner erred in deciding she had jurisdiction to arbitrate the dispute before her because it was not a dispute about the National Employment Standards (NES) or matters in the Serco Agreement, as required by clause 43 of the Serco Agreement in order for the FWC to be empowered to arbitrate it without the further consent of the parties. Serco was not giving that further consent and there was no contention before the Commissioner that the dispute was about the NES.

[10] In support of its appeal, Serco points to the content of the application made by UV which was before the Commissioner. The UV application of 28 February 2014 relevantly stated the following:

“1. What is the industry of the employer?

Corrections Industry

2. Relevant instrument:

The dispute is referred to the Commission pursuant to a dispute settlement procedure in:

• Name of instrument:

Serco Southern Queensland Correctional Centre Agreement 2013-2016 (AG2013/2737)…

3. Clauses to which the dispute relates:

1. Clause 27 - Overtime
2. Clause 35 - Annual leave
3. Clause 38 - Personal/Carer’s leave

4. What is the dispute about?

1. Note this matter has been previously subject to unsuccessful conciliation in C2013/7388 - the application in this matter is annexed.
2. The Applicant is a registered organisation who represents the industrial interests of members engaged under the Serco Southern Queensland Correctional Centre Agreement 2013-2016 (the Agreement).
3. The Agreement was approved by the Fair Work Commission on 20 September 2013.
4. Throughout the course of negotiations, the Applicant and the Respondent agreed that, irrespective of when the Agreement was approved and commenced operation, ‘backpay’ would be applied, with an effective date of 1 April 2013.
5. The effect of this would be that the higher rates of pay specified in the Agreement would have an effective date of 1 April 2013.
6. Subsequent to the commencement of the Agreement, the Applicant has learned that the Respondent has limited backpay to ordinary time wages and allowances.
7. The Applicant was of the understanding that the new rates of pay would be made effective for the purposes of calculating overtime and also paid for periods of annual leave and personal/carer’s leave taken between 1 April 2013 and the commencement of the Agreement.” 9

[11] Serco also refers to the directions subsequently issued by the Commissioner on 26 March 2014 in respect of the UV application which identified the issue in dispute as “[w]hether ‘backpay’ applies to overtime worked and annual/personal leave taken (backpay dispute)” and required the parties to provide the FWC with submissions and witness statements on the “backpay dispute”.

[12] Further, Serco submits as follows:

“17. In the course of preparing for arbitration of the dispute the Respondent filed submissions in support of its position. The submissions continue to allege an agreement between the parties that the Appellant would ‘backpay’ to 1 April 2013. The Respondent again asserts that the agreement included overtime, annual and carer’s leave. The Appellant again rejects these were the terms of the agreement to ‘backpay’ its employees.” 10

[13] On this basis Serco maintains the dispute was clearly limited. The dispute being about “the terms of a ‘pre-agreement’ agreement”, 11 with the parties disagreeing as to the meaning of the term ‘backpay’ as used by them in the negotiations preceding FWC approval of the Serco Agreement. Serco said the dispute is not a dispute about “any aspect of the wording or effect of the wording of any clause contained within the”12 Serco Agreement or “about the operation or interpretation of the clauses contained in the”13Serco Agreement.

[14] In opposition to the appeal, UV submits as follows:

“5. The Commission was not in error in ruling that it had jurisdiction to deal with the dispute because:

(a) the dispute concerned employees’ entitlements under particular provisions of the enterprise agreement for a specified period;

(b) the resolution of the dispute involved an interpretation of those provisions of the enterprise agreement, in the context of the agreement as a whole, and required a consideration of whether extrinsic evidence should be admitted in aid of the interpretation;

(c) the dispute was about ‘matters in this Agreement’ within the meaning of clause 43 of the enterprise agreement and was about ‘matters arising under the agreement’ within the meaning of s.186(6) of the Act.” 14

[15] In this regard, UV submits that:

“12. The dispute raised in the union’s application was clearly about ‘matters in the Agreement’. It was about the rate to be used for the calculation of entitlements under particular provisions of the enterprise agreement and whether the rates specified in Appendix 2 of the enterprise agreement formed the basis of the payment of those entitlements in the period from 1 April 2013 to 27 September 2013. It is axiomatic that a dispute requiring the proper interpretation of an enterprise agreement is about a matter in the agreement. The learned Commissioner was correct to so find.

13. The dispute was about ‘matters arising under the Agreement’within the meaning of s.186(6) of the Act. That provision requires the Commission to be satisfied that the agreement includes a procedure for settling disputes, inter alia, ‘about any matters arising under the Agreement’before approving the enterprise agreement. The Commission’s approval decision must be taken to have understood the words ‘in the Agreement’in clause 43 to be consistent with the phrase ‘arising under the Agreement’in s.186(6)(a)(i). The dispute was about a right which owed its existence to the enterprise agreement and was therefore a matter arising under the agreement.

14. Serco’s argument that the dispute was solely about an alleged collateral agreement concerning back pay reached during the course of negotiations for the enterprise agreement is unduly restrictive and should be rejected. That argument is not consistent with a proper reading of the application concerning the dispute and the properly understood subject matter of the dispute. In any event the dispute, being about the quantum of entitlements sourced in specifically identified provisions of the enterprise agreement, was a dispute about a matter arising under the agreement.” 15 [Footnotes omitted]

Conclusion

[16] We are satisfied the Commissioner was correct to conclude she had jurisdiction to arbitrate the dispute before her.

[17] The nature of the dispute, if not clear already, was clarified in written submissions UV made in respect of their application before the Commissioner. 16

[18] In the s.739 application before the Commissioner, UV clearly identified that the clauses in the Serco Agreement relevant to the dispute were its clauses 27, 35 and 38. Later, in written submissions in respect of the dispute, UV also identified clauses 4 and 14 and Appendix 2 of the Serco Agreement as relevant to the dispute.

[19] These clauses in the Serco Agreement are relevantly as follows:

“4. Period of operation

This Agreement shall commence seven (7) days after approval by the Fair Work Commission and shall have a nominal expiry date of 31 March 2016…

14. Job classifications salary rates

(a) The job classification and salaries effective from the date of operation of this Agreement are set out in the tables below.

(i) Employees (other than casual employees) working continuous and non-continuous shift work, employed in the classifications of Custodial Officer, Gym Officer, and Chef, in Tables 1 and 4 of this Clause are paid at a consolidated rate which is in full consideration of all penalties, shift allowances, annual leave loadings and the Healthy Living Allowance in clause 19.

(ii) Employees (other than casual employees) working day work, employed in the classification of Custodial Officer in Table 1 of this Clause are paid at a consolidated rate which is in full consideration of the Healthy Living Allowance in clause 19.

(iii) Employees employed in the classification of Dog Squad Officer in Table 3 of this Clause are paid at a consolidated rate which is in full consideration of all penalties, shift allowances and annual leave loadings.

(iv) Employees employed in the classification of Custodial Supervisor in Table 2 of this Clause are paid at a consolidated rate which is in full consideration of all shift allowances, annual leave loading and penalties, except Public Holiday penalties which are otherwise prescribed in Clause 37.

Custodial Officer and Gym Officer

Table 1

Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Annual Rate	Non Continuous Shift Work	$35,248.68	$51,830.20	$58,414.87	$64,525.38	$66,277.99	$68,251.36
	Continuous Shift Work	N/A	$53,778.81	$60,337.83	$66,649.48	$68,459.78	$70,498.12
	Day Work	N/A	$43,019.06	$48,484.34	$53,556.07	$55,010.73	$56,648.63
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Hourly Rates	Non Continuous Shift Work	$17.84	$26.23	$29.56	$32.65	$33.54	$34.54
	Continuous Shift Work	N/A	$27.22	$30.54	$33.73	$34.65	$35.68
	Day Work	N/A	$21.77	$24.54	$27.10	$27.84	$28.67
	Casual Rate	N/A	$24.65	$27.60	$30.48	$31.31	$32.24

Custodial Supervisor

Table 2

Level 1	Level 2	Level 3
Annual Rate	$74,933.65	$76,360.98	$77,788.30
Hourly Rate	$37.92	$38.64	$39.37

Dog Squad Officer

Table 3

Annual Rate	$69,660.79
Hourly Rate	$35.25

Chef (same as Custodial Level 3 Non-Continuous Shift Work rate)

Table 4

Annual Rate	$66,277.99
Hourly Rate	$33.54

(b) Salaries adjustments

(i) The salaries set out in the Tables at Clause 14(a) hereof will apply from the date of operation of this Agreement and includes a 2.2% increase from the last Agreement.

(ii) Salaries will be increased by 2.2% effective from the first full pay period to commence on or after 1 April 2014.

(iii) Salaries will be further increased by 2.2% effective from the first full pay period to commence on or after 1 April 2015.

‘Hourly Salary Rate’ is calculated by dividing the annual rate by 1976 hours or the ‘Weekly Salary Rate’ divided by 52 weeks per year…

27. Overtime

(a) No employee shall work overtime without prior authorisation from the company.

(b) The company may request or require an employee to work reasonable additional hours at overtime rates.

(c) Overtime shall be deemed payable when it is entered on the timesheet and authorised by the relevant manager who requested such overtime to be worked.

(d) Any employee recalled to perform duty after completing a normal shift or on any leave day or off duty shall be paid at overtime rates for that duty with a minimum payment of three hours.

(e) Custodial Officers and Gym Officers who performs an overtime shift shall be paid at the applicable rate (either non-continuous shift worker rate, continuous shift worker rate or day worker rate) for that shift, provided that, in circumstances where an employee is paid the continuous shift worker rate as per table 1 in clause 14 and is required to undertake training during a day shift, that employee will paid for such training at the continuous shift worker rate.

(f) An employee required to continue working for more than two hours after the cessation of ordinary duty shall be provided with a reasonable meal by the company or be paid a meal allowance of $13.08.

(g) All authorised time worked by employees at SQCC in excess of an average of 38 hours per week over a roster cycle shall be paid as per the table below.

Type of employment

Overtime rate

Day Workers

for overtime worked on Monday to Saturday at time and one-half for the first three hours and double time thereafter, and

for all overtime worked on a Sunday at double time.

Continuous Shift Workers

At double time for all overtime hours worked.

Non-continuous Shift Workers

At double time for all overtime hours worked.

Casual employees

At time worked in excess of twelve hours in any one day or in excess of 76 hours in a pay fortnight at the rate of time and one half for the first three hours and double time thereafter.

(h) Authorised overtime will be allocated to employees subject to availability and the Overtime Procedure…

35. Annual leave

Annual leave is provided for in the NES.

(a) A full time employee is entitled to 4 weeks (152 hours) paid annual leave for each year of service with the company.

(b) A full-time shift worker is entitled to 5 weeks (190 hours) paid annual leave for each year of service with the company.

(c) Shift workers for the purposes of the NES.

For the purposes of section 87(1)(b) of the Fair Work Act 2009, a shift worker is an employee who:

(i) who works a roster and who, over the roster cycle, may be rostered to work ordinary shifts on any of the seven days of the week; and

(ii) who is regularly rostered to work on Sundays and public holidays.

(d) For employees covered by this Agreement other than Custodial Supervisors and Custodial Officers working as day workers, annual leave is inclusive of public holidays. If a public holiday occurs during an employee’s period of annual leave, the employee will not be entitled to a paid day off for the public holiday in addition to annual leave. For Custodial Supervisors and Custodial Officers working as day workers, annual leave is exclusive of public holidays. If a public holiday occurs during an employee’s period of annual leave, the employee will be entitled to a paid day off for the public holiday in addition to annual leave.

(e) Leave accrues progressively during a year of service according to an employee’s ordinary hours of work, and accumulates from year to year.

(f) A part time employee is entitled to annual leave on a pro rata basis.

(g) Annual leave is to be taken at dates agreed between an employee and the company as soon as practicable after an employee’s full entitlement to leave becomes due, but in any case normally no later than 12 months after full entitlement becomes due (ie. within 12 months following the anniversary of an employee’s employment with the company). No more than 5 weeks of accrued annual leave should be outstanding at any point in time.

(h) In circumstances where agreement as to the date(s) of taking leave cannot be reached, either the company or the employee must give at least 1 month’s notice of the intention to take annual leave. The company will endeavour to give employees notice of the requirement to take leave as far in advance as possible.

(i) Annual leave is to be taken if fortnightly blocks unless otherwise agreed between an employee and the company.

(j) All employees covered under this Agreement shall be paid annual leave at the consolidated rate. The pay rate for annual leave is at the consolidated rate only, that would have applied if the employee had been at work for that period.

(k) Custodial Officers working as day workers will be paid a 17.5% annual leave loading on all periods of annual leave. Annual leave loading will be paid on annual leave on termination of employment.

(l) Employees will be provided with a substantiated receipt of their leave application and, with the exception of leave requests for December and January, will have a decision within 7 days as to the status of the requested leave. In relation to applications for leave in December and January, employees will be invited to make such application no later than 30 June for the coming period. Such applications will then be assessed and approved on a fair and equitable basis subject to operational requirements for that period…

38. Personal/Carer’s leave

Personal/Carer’s leave is provided for in the NES.

(a) The provisions of this clause apply to full time, specified term and part time employees, but do not apply to casual employees, except where specified under the Fair Work Act.

(b) Personal/carer’s leave accrues at the rate of 10 days (76 hours) for each year of service. An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

(c) An employee may use any of his/her available balance of personal/carer’s leave as paid carer’s leave.

(d) Paid personal/carer’s leave is available to an employee when he or she is absent due to:

• personal illness or injury (sick leave); or



• for the purposes of caring for an immediate family or household member that is sick and requires the employee’s care and support (carer’s leave); or



• an unexpected emergency affecting the member.

(e) The entitlement to carer’s leave is subject to the person in respect of whom the leave is taken being either:

• a member of the employee’s immediate family; or



• a member of the employee’s household.

(f) Payment will be as per the employee’s personal/carer’s leave balance accrual in accordance with the applicable rates for the employee’s classification level.

(g) Extended (discretionary) paid sick leave. In addition to the paid personal leave entitlement set out in Clause 38 hereof, the company will in its discretion, consider making further paid sick leave to an employee subject to the following circumstances and conditions:

(i) The employee is suffering from a serious injury or illness that requires hospitalisation and/or extended time off work for recuperation at home;

(ii) The employee has exhausted all annual leave and sick leave entitlements;

(iii) The employee has provided an/or has authorised the company to obtain written opinion from a registered medical practitioner as to the nature and extent of the injury or illness suffered by the employee and the estimated time the employee would be unable to work;

(iv) As a general guide, extended sick leave would normally be up to a period of 76 hours or 2 weeks.

(h) Employee must give notice as soon as practicable and within 3 hours of the commencement of such absence, the employee shall inform the company of his or her inability to attend for duty. The notice must include:

• the nature of the injury or illness (if known); and



• how long the employee expects to be away from work.

If it is not practicable for the employee to give prior notice of absence, the employee must notify the company by telephone at the first opportunity.

(i) Evidence supporting claim. In the case of sick leave, the employee must, if required by the company, establish by production of a medical certificate from a registered medical practitioner that the employee was unable to work because of injury or personal illness. A medical certificate or statutory declaration is not required for the first 2 consecutive days of an absence due to illness or injury. If it is not reasonably practicable to provide a medical certificate, the employee may provide a statutory declaration. In the case of carer’s leave, the employee must, if required by the company, establish by production of a medical certificate from a registered medical practitioner, the illness of the person concerned and that the illness is such as to require care by another…

APPENDIX 2 -
Table of Wage Rates

Custodial Officers and Gym Officers

1-Apr-13
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Annual Rate	Non Continuous Shift Work	$35,248.68	$51,830.20	$58,414.87	$64,525.38	$66,277.99	$68,251.36
	Continuous Shift Work	N/A	$53,778.81	$60,337.83	$66,649.48	$68,459.78	$70,498.12
	Day Work	N/A	$43,019.06	$48,484.34	$53,556.07	$55,010.73	$56,648.63
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Hourly Rates	Non Continuous Shift Work	$17.84	$26.23	$29.56	$32.65	$33.54	$34.54
	Continuous Shift Work	N/A	$27.22	$30.54	$33.73	$34.65	$35.68
	Day Work	N/A	$21.77	$24.54	$27.10	$27.84	$28.67
	Casual Rate	N/A	$24.65	$27.60	$30.48	$31.31	$32.24

1-Apr-14
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Annual Rate	Non Continuous Shift Work	$36,024.15	$52,970.46	$59,700.00	$65,944.94	$67,736.10	$69,752.89
	Continuous Shift Work	N/A	$54,961.94	$61,665.26	$68,115.77	$69,965.90	$72,049.08
	Day Work	N/A	$43,965.48	$49,551.00	$54,734.30	$56,220.97	$57,894.90
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Hourly Rates	Non Continuous Shift Work	$18.23	$26.81	$30.21	$33.37	$34.28	$35.30
	Continuous Shift Work	N/A	$27.81	$31.21	$34.47	$35.41	$36.46
	Day Work	N/A	$22.25	$25.08	$27.70	$28.45	$29.30
	Casual Rate	N/A	$25.19	$28.20	$31.15	$32.00	$32.95

1-Apr-15
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Annual Rate	Non Continuous Shift Work	$36,816.68	$54,135.81	$61,013.40	$67,395.73	$69,226.30	$71,287.45
	Continuous Shift Work	N/A	$56,171.10	$63,021.90	$69,614.32	$71,505.15	$73,634.16
	Day Work	N/A	$44,932.72	$50,641.12	$55,938.45	$57,457.83	$59,168.58
Trainee Officer	Probationary	Level 1	Level 2	Level 3	Level 4
Hourly Rates	Non Continuous Shift Work	$18.63	$27.40	$30.88	$34.11	$35.03	$36.08
	Continuous Shift Work	N/A	$28.43	$31.89	$35.23	$36.19	$37.26
	Day Work	N/A	$22.74	$25.63	$28.31	$29.08	$29.94
	Casual Rate	N/A	$25.74	$28.82	$31.84	$32.70	$33.68

Custodial Supervisors

1-Apr-13
Level 1	Level 2	Level 3
Annual Rate	$74,933.65	$76,360.98	$77,788.30
Hourly Rate	$37.92	$38.64	$39.37

1-Apr-14
Level 1	Level 2	Level 3
Annual Rate	$76,582.19	$78,040.92	$79,499.65
Hourly Rate	$38.76	$39.49	$40.23

1-Apr-15
Level 1	Level 2	Level 3
Annual Rate	$78,267.00	$79,757.82	$81,248.64
Hourly Rate	$39.61	$40.36	$41.12

Dog Squad Officers
1-Apr-13	1-Apr-14	1-Apr 15
Annual Rate	$69,660.79	$71,193.32	$72,759.58
Hourly Rate	$35.25	$36.03	$36.82

Chefs
1-Apr-13	1-Apr-14	1-Apr 15
Annual Rate	$66,277.99	$67,736.10	$69,226.30
Hourly Rate	$33.54	$34.28	$35.03

[20] We think it is apparent from the s.739 application and UV’s written submissions that, in essence, the dispute before the Commissioner was whether, pursuant to clauses 4, 14, 27, 35 and 38 and Appendix 2 of the Serco Agreement, an employee to whom the Serco Agreement applies or applied should have been paid for overtime performed and paid leave taken by them between 1 April 2013 and 26 September 2013 inclusive on the basis of the 1 April 2013 wage rates set out in the Serco Agreement.

[21] The Commissioner’s characterisation of the dispute is to the same effect.

[22] Such a dispute is clearly a dispute about matters in the Serco Agreement and thereby, pursuant to clause 43 of the Serco Agreement, a dispute which the Commissioner was empowered to arbitrate.

[23] While UV’s s.739 application and written submissions referred to the dispute as involving “backpay”, it is evident from a proper reading of the UV s.739 application and written submissions that the dispute was not as limited as Serco suggests. Further, while the Commissioner summarised the dispute as concerning “backpay”, 17 it is evident from the Commissioner’s decision that she appreciated the scope of the dispute and that it was not limited to that suggested by Serco.

[24] For the above reasons we are not satisfied the Commissioner erred, as submitted by Serco, in deciding she had jurisdiction in respect of the dispute before her. Serco has not persuaded us we should grant permission to appeal in this matter in the public interest or otherwise. We therefore refuse permission to appeal in this matter and, to the extent necessary, dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

J. Dwyer, counsel, with S. Gifford for Serco Australia Pty Ltd.

R. Reed, counsel, with R. Tate for United Voice.

Hearing details:

2015.

Brisbane:

February 5.

 1   United Voice v Serco Australia Pty Ltd, [2014] FWC 9090.

 2   United Voice v Serco Australia Pty Ltd, C2014/3276.

 3   AE404221.

 4   Serco Southern Queensland Correctional Centre Agreement 2013-2016, [2013] FWCA 7247.

 5   AE404221.

 6   United Voice v Serco Australia Pty Ltd, [2014] FWC 9090.

 7   Ibid.

 8   Ibid.

 9   Appeal Exhibit A1.

 10   Ibid.

 11   Ibid at paragraph 18.

 12   Ibid at paragraph 19.

 13   Ibid at paragraph 32.

 14   Appeal Exhibit R1.

 15   Ibid.

 16   See, for example, submissions of United Voice dated 15 April 2014 at paragraphs 10, 11 and 12.

 17   See, for example, United Voice v Serco Australia Pty Ltd, [2014] FWC 9090 at paragraphs 2 and 21.

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